Mary Flynn and Another (Claimants) Secretary of State for Communities and Local Government (Defendant) Basildon Borough Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 20 February 2014 |
| Neutral Citation | [2014] EWHC 390 (Admin) |
| Date | 20 February 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13040/2012 |
[2014] EWHC 390 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lewis
Case No: CO/13040/2012
and
Stephen Cottle (instructed by Lester Morrill "incorporating Davies Gore Lomax") for the Claimant
Jonathan Moffett (instructed by Treasury Solicitor) for the Defendant
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
The Claimants, Mrs Mary Flynn and her daughter, Mrs Nora Sheridan, are travellers who formerly lived in caravans on a site known as Dale Farm in Essex. In November 2011, following their eviction from Dale Farm, the Claimants moved their caravans to a roadway or access track which leads east from Oak Lane to Dale Farm. On 24 July 2012, Basildon District Council ("the Council") served an enforcement notice on the Claimants amongst others alleging that there had been a breach of planning control in that there had been a material change of use of the access track to use for residential purposes and the stationing of residentially occupied caravans. An appeal was lodged. By a decision dated 3 September 2012, the planning inspectorate decided that the appeal was not valid as the appellant, whom they regarded as Mrs Flynn, did not have an interest in land and was not a relevant occupier as she did not have a written or oral licence from the landowner to occupy the land to which the enforcement notice related. Consequently, they considered that Mrs Flynn did not have a right of appeal against the enforcement notice under section 174 of the Town and Country Planning Act 1990 ("the 1990 Act")
The Claimants contend that the decision is unlawful in that the Defendant failed to consider whether Mrs Flynn was a relevant occupier as she had an implied licence to occupy the land. Further the Claimants contend that the provisions of section 174 of the 1990 Act must be interpreted so as to enable Mrs Flynn to appeal in order to avoid a breach of her right to respect for her home and private life under Article 8 of the European Convention on Human Rights ("ECHR").
THE FACTS
Travellers began moving caravans on to the site at Dale Farm at the end of 2001 or the start of 2002. Mrs Flynn and Mrs Sheridan lived on a pitch at Dale Farm from 2003 to November 2011. The Council issued enforcement notices alleging a breach of planning control in respect of the stationing of caravans at Dale Farm. There was unsuccessful litigation in relation to those notices. The authority subsequently took action to enter the land and take the steps required by the enforcement notices, including removing the caravans, pursuant to section 178 of the 1990 Act. A challenge to the lawfulness of the decision to take such action was dismissed by the Court of Appeal: see Basildon District Council v McCarthy and others [2009] EWCA Civ. 13. Permission to bring a further challenge was refused by Ouseley J. who sets out in detail the history of the matter: see R (Sheridan and others) v Basildon District Council [2011] EWHC 2938 (Admin). An appeal against that decision was unsuccessful.
Following the eviction, Mrs Flynn and Mrs Sheridan moved their caravans from their pitch at Dale Farm and on to the site of an access track running east from Oak Lane to Dale Farm in November 2011. The access track appears from the evidence to be situated over land owned by a number of different people. Part of the access track appears to lie on land forming part of a field owned by a Mrs Palmer. The field includes the access track to the south and extends further north. Other parts of the access track appear to be situated on other plots of land to the south of the field. Those other plots, according to the Land Registry documents put in evidence, are said to be owned by individuals who include a Mr Woods, a Mr O'Brien, a Mr Flynn, a Mrs Gammell, and jointly by a Mrs Bridget Flynn and a Mrs Quilligan. Their plots of land include the access track and their properties which are to the south of, and look onto, the access track. I will return to the location of Mrs Flynn's and Mrs Sheridan's caravans later in this judgment.
It is said that others also moved their caravans on to the access track. There is no evidence before this court as to which other people moved caravans onto the access track nor is there any evidence as to the particular locations in which those other individuals stationed their caravans.
On 24 July 2012, the Council issued a planning notice alleging a breach of planning control. The land affected was described as land east of Oak Lane, Crays Hill, Billericay in Essex and was identified on an accompanying plan. It included the access track. The breach of planning control alleged was:
"Without planning permission the unauthorised making of a material change in the use of the land and access track to residential use and the stationing of residentially occupied caravans."
The reasons for issuing the enforcement notice were as follows:
"The land is located within the Metropolitan Green Belt and outside any area allocated for development in the Basildon Local Plan Saved Policy Document. The development of this land is contrary to the aims and objectives of national Green Belt planning policy as set out in the National Planning Policy Framework (NPPF) and Planning Policy for Travellers Sites (PPTS)
The NPPF sets out the purposes of including land in a Green Belt, it states that development will not be permitted, except in very special circumstances or when required for agricultural and certain other limited purposes appropriate to the Green Belt. The use of the land and access track for stationing and residential occupation of caravans is inappropriate development that conflicts with national planning and the purposes of including land within the Green Belt.
Furthermore, the use is in breach of the NPPF and PPTS policies relating to the strict control of development in the open countryside. The use gives rise to a detrimental effect upon the character and appearance of the area in conflict with Local Plan Policy BAS BE12. The use is unsuitable in transport terms and gives rise to unacceptable risks to highway safety.
The Council has taken into consideration all known personal circumstances of those occupying the land and access track. These include the healthcare needs of the occupiers, and the welfare and educational needs of the resident children. These considerations do not whether taken individually or collectively amount to very special circumstances that would clearly outweigh the harm to the Green Belt and other harm identified. The use of the land and access track for the stationing of residentially used caravans restricts the access to the lawful traveller pitches to the south; to the detriment of the occupiers wellbeing and safety in the event of an emergency situation occurring which may require the prompt attendance of the emergency service vehicles.
Planning permission for these reasons could not be granted as planning conditions would not overcome the objections to the retention of this change in the use of the land and access track.
The Council considers that in the circumstances remedying the breach of planning control is expedient and in the public interest, and therefore reasonable, proportionate and indiscriminate. Any interference with an individual's Human Rights as conveyed by Article 8 of the European Convention on Human Rights is justified as being in the wider public interest."
The persons served with the notice included nine named individuals who owned land comprised within the enforcement notice, including Mrs Palmer, Mr O'Brien, Mr Woods, Mr Flynn, Mrs Gammell, Mrs Bridget Flynn and Mrs Quilligan. The notice was also served on persons described in the notice itself as "the Owner and any Occupiers, Land east of Oak Lane, Billericay, Essex". The category of persons served in accordance with that description included Mrs Flynn and Mrs Sheridan. That category is said to include others but there is no evidence before this court of who else was served with the notice
The enforcement notice required those served to cease using the land and access track for residential purposes and for stationing caravans and to remove all residential material and all rubbish. The time for compliance was 1 month after the notice took effect. The notice took effect on 29 August 2012.
An enforcement notice appeal form was completed and submitted to the planning inspectorate. Section A of that form asks for details of the appellant. The name of the appellant is shown as "Mrs M Flynn (Dale Farm Residents Association)". Mrs Flynn's address is given. Section B gives the name of the agent as "Mr Stuart Hardwick Carruthers (Dale Farm Residents Association)". Details of the appeal are given. Section 4 asks for the appeal site address. Question 2 asks what is the appellant's interest in land and gives three choices owner, tenant or mortgage. None of these boxes were ticked. Question 2 continues by asking if the appellant occupies the land under "a written or oral licence BOTH on the date the enforcement notice was served AND on the date of making this appeal". If the answer is no, the form asks for details of the appellant's involvement in the land. The submitted form has a tick in the box for...
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